Argued October 29, 2015.
Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. (5:12-cr-00030-MFU-1). Michael F. Urbanski, District Judge.
Andrea Lantz Harris, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant.
Elizabeth G. Wright, OFFICE OF THE UNITED STATES ATTORNEY, Harrisonburg, Virginia, for Appellee.
Larry W. Shelton, Federal Public Defender, Christine Madeleine Lee, Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant.
Anthony P. Giorno, Acting United States Attorney, Roanoke, Virginia, Jean B. Hudson, Assistant United States Attorney, Franklin Sacha, Appellate Intern, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.
Before NIEMEYER and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge. Judge Niemeyer wrote the opinion, in which Judge Harris joined. Senior Judge Davis wrote a separate opinion concurring in part and dissenting in part.
NIEMEYER, Circuit Judge:
A jury convicted Jean Paul Alvarado of knowingly and intentionally distributing heroin to Eric Thomas on March 29, 2011, with Thomas' death resulting from the use of the heroin so distributed, in violation of 21 U.S.C. § § 841(a)(1) and 841(b)(1)(C). The district court sentenced Alvarado to the mandatory minimum sentence of 20 years' imprisonment.
On appeal, Alvarado contends that the district court erred (1) in failing to clarify for the jury that the results-in-death element meant that the jury could not convict him of the charged offense if heroin was only a contributing cause of death; (2) in failing to instruct the jury that Alvarado must have " reasonably foreseen" that death could result; and (3) in admitting hearsay testimony that Thomas said he purchased heroin from " Fat Boy," meaning Alvarado, in violation of the hearsay rule and the Sixth Amendment's Confrontation Clause.
We affirm. First, we conclude that, because there was no evidence in the record that Thomas could have died without the heroin, the jury's verdict was necessarily consistent with the Supreme Court's requirement of but-for causation. See Burrage v. United States, 134 S.Ct. 881, 887-88, 187 L.Ed.2d 715 (2014). As a result, the district court's decision not to elaborate on the meaning of the statutory results-in-death language did not amount to an abuse of discretion, let alone plain error, in light of the court's legitimate concerns about confusing the jury. Second, we conclude that our decision in United States v. Patterson, 38 F.3d 139 (4th Cir. 1994), forecloses Alvarado's argument that the district court should have instructed the jury on the foreseeability of death. And finally, we conclude that the district court did not commit reversible error in admitting hearsay testimony that Thomas said he purchased heroin from " Fat Boy" because (1) even if the hearsay did not fall under a hearsay exception, its admission was harmless; and (2) the hearsay was not " testimonial" and therefore did not implicate Alvarado's Sixth Amendment right of confrontation.
In response to custodial police questioning on March 30, 2011, Alvarado admitted that, on the previous day, March 29, he had sold five bags of heroin to Thomas. Text messages between Alvarado and Thomas indicated that the sale occurred during the late morning hours in the bathroom of a grocery store in Harrisonburg, Virginia. Within hours of that transaction, when Thomas' fiancée, Monica Shaughnessy, returned to the apartment in which she and Thomas were living, she discovered Thomas slumped over in a chair. As she testified at trial, " As soon as I opened the door, I knew what was going on. . . . I knew he had overdosed on a mixture of Xanax and heroin. He had an amazing amount of Xanax and I knew he was going to get heroin that day. His new thing was to mix them together and that will kill you
and he knew this." When she touched Thomas, she found that " [h]e was freezing." She said she had " [n]ever felt a human cold like that."
When Shaughnessy was unable to revive Thomas with CPR, she called 911, a call that was received by the dispatcher at 3:13 p.m. Emergency responders could not resuscitate Thomas, and at 4:07 p.m., he was pronounced dead at a local hospital. When investigators arrived at Thomas' apartment within an hour of the emergency 911 call, they observed an array of drug paraphernalia around where Thomas had been sitting, including needles, needle caps, and drug packaging materials. They also discovered a cell phone, which led them to Alvarado, who was arrested the next day.
A grand jury indicted Alvarado for heroin distribution resulting in death, in violation of 21 U.S.C. § § 841(a)(1) and 841(b)(1)(C).
Prior to trial, Alvarado filed a motion in limine to exclude evidence of statements made by Thomas, including statements by which Thomas told friends that he chiefly bought heroin from a drug dealer named " Fat Boy," referring to Alvarado. The district court deferred resolution of the motion until trial and at that time admitted the statements.
At trial, a former DEA special agent, who had investigated Thomas' death, testified that Thomas' and Alvarado's cell phone records revealed that Thomas had made contact with Alvarado and a man named Luis Blass, another drug dealer, in the days and weeks before his death. The investigator testified that Thomas' last contact with Blass occurred on March 24, 2011 -- five days before Thomas' death. Thomas communicated with Alvarado, however, with text messages on March 26, 27, 28, and 29. In two text messages, one on March 27 and one on March 29 (at 10:40 a.m.), Thomas wrote that he wanted a " b" from Alvarado (referring to a " bundle" of heroin bags wrapped together). In further messages on March 29, Thomas and Alvarado arranged plans to meet in the bathroom of a grocery store, and, in the final text, Thomas confirmed to Alvarado that he had seen him and was walking into the bathroom.
Thomas' fiancée Shaughnessy testified that Thomas had begun using heroin in the summer of 2009 and that he had progressed to daily use by early 2010. She stated that Thomas used his entire daily purchase of heroin, usually a bundle of five bags and sometimes more, " [p]retty much within an hour span" of consummating the purchase. While Thomas would often share some heroin with Shaughnessy, he would consume the remainder almost immediately. She also testified that, on the day of his death, Thomas had driven her to work in the morning and had indicated to her that he intended to buy heroin soon thereafter before going to play golf. " [H]e had to go get heroin because he wasn't going to be able to [play golf] without that." She stated that she knew that Thomas purchased heroin from a dealer named " Fat Boy," because he said so and because she often went with Thomas (about once a week) when he purchased heroin from " Fat Boy," referring to Alvarado. Shaughnessy also said that Alvarado sold Thomas heroin in white-colored bags.
Josh Melewski, one of Thomas' best friends, also testified that Thomas did not stockpile heroin, but would instead use it almost immediately after purchasing it. Recounting Thomas' suppliers over the years, Melewski said that Thomas first obtained heroin in 2009 from a man named Miguel Rodriguez. After Rodriguez, he purchased heroin from a man named Luis, who sold Thomas heroin in square-shaped, blue-colored bags that had a stamp on
them. Melewski also testified that, beginning in 2010, Thomas started purchasing from a dealer that Thomas referred to as " Fat Boy." Melewski stated that " Fat Boy" sold heroin in " [p]lain bags with no stamp."
On the day after Thomas' death, Melewski met with Shaughnessy at a hotel, where Shaughnessy took Melewski into a bathroom and showed him bags of heroin she had purportedly taken from their apartment on the day of the overdose. Melewski said that the bags that Shaughnessy produced " were the rectangle, clear, wax bags."
A forensic toxicologist with the Virginia Department of Forensic Science, Dr. David Burrows, testified that a drug screen of Thomas' blood and urine revealed the presence of a high concentration of morphine, which, he explained, was the metabolized form of heroin. The drug screen also revealed a " therapeutic level" of Xanax -- i.e., an amount that a physician would recommend to treat a specific condition -- and an amount of Benadryl that was " below the associated toxic level." Dr. Burrows acknowledged that Benadryl could " aggravate" the effects of heroin and that the combination of heroin, Benadryl, and Xanax could have ...